My child wandered away from school and got hurt. What can I do legally?

Q:

My child wandered away from school and got hurt. What can I do legally?

A:

Parents normally do not have to worry about the safety of their children while at school in most educational facilities across the United States, but there are always unique cases where a child wanders away from school during school hours. There are many reasons why this can happen, especially when the child has a behavioral disability of some type, such as autism or hyperactivity syndrome. Many children just do not enjoy school or do not function well within the learning environment.

Unfortunately, there are also cases where children wander off school grounds because of a definite lack of security or supervision by the teachers and staff. In the classroom, students are generally confined and most elementary schools or daycare facilities do not change classrooms except for special classes such as designated reading classes or classroom library visits.

Most wandering situations occur while the children are at recess or at an outside function. Regardless of the circumstances involving wandering children, the school system still owes a reasonable duty of care to the students from a legal standpoint.

Reasonable Duty of Care for Schools

All schools run on policy standards, and one of the primary standards is the safety of children. Of course, children are always vulnerable when they wander away from school grounds, whether it is because of a child disability or just a lack of supervision. All children are required, by law, to attend school of some type, so both public and private school systems must address their legal responsibilities concerning safety as policy statement number one, because they can surely be the target of legal action when a child wanders away unsupervised.

All states set limits on the number of children assigned to teachers and staff, so when children wander away unattended, the number of students assigned to a particular member of the official school staff will be one of the first issues addressed in any legal evaluation. This also includes officially sanctioned school functions outside of normal classroom hours. School policy is usually written with reasonable duty of care as the central and primary responsibility of the school, because parents are mandated by law to provide education for their children.

Filing a Legal Action Against a School

Many times, filing a lawsuit against a school amounts to suing the government. Sometimes the state is also part of that negligent respondent group, but many times, the negligent party will be a local entity or private sector business. Daycare facilities fall under the same scope for a reasonable duty of care to children, even though they are not technically students unless they are in a certified preschool facility.

Teachers and staff at all schools are held to a very high standard of duty of care, but any legal action will be subject to similar rules based on legal requirements and stated school policy.

Requirements for a Successful Legal Claim

The first requirement in any tort action is the reasonable duty of care issue. The respondent must actually be assigned that duty of care for the plaintiff to establish a legal standing to sue. A second component for schools is that a risk of injury is foreseeable, so the potential for injury matters even if there is no injury suffered.

However, the likelihood of injury must be significant. The court determination of significance is crucial for a valid claim. This is not a requirement of a typical civil tort personal injury claim, because a breach of the duty of care is not necessary when the facility has failed to follow proper protocol. In the event of an actual injury, the breach or failure must be the direct cause of the injury because of the school's legal responsibility to restrict the location of the child to school property.

Filing a legal action against a school can be a complicated undertaking and should only be done under the representation of a personal injury lawyer with a successful track record for pursuing damage awards in these situations.

There may be limits in terms of punitive damages, even in severe cases of negligence in properly supervising the child. Always retain an effective and experienced attorney for these matters, and let them evaluate your case for damage award potential. Do not begin the legal action in a pro sepersonal filing.

Whether you're facing a legal issue or just seeking information, Justipedia aims to be your most trusted resource for legal information on the Web. With the help of legal professionals across the country, we put the law in plain language to help answer your top legal questions.

Justipedia was founded by Internet veterans Cory Janssen and Mitchell Allen. Janssen founded Investopedia.com and grew it one of the largest investing sites on the Web. Allen is an author, speaker and the founder of LeadRival, the leading provider of pay-per-action advertising in consumer legal services.